0520100403 Sheehy v NSA final
02-27-2012
Mary Ann Sheehy, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
Mary Ann Sheehy,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Request No. 0520100403
Petition No. 0420090007
Appeal No. 0120072655, Requests No. 0520080753, 0520100222
Agency No. 01-017
DECISION ON RECONSIDERATION
The Commission exercises its discretion to reconsider the decision issued in Mary Ann Sheehy v. National Security Agency, EEOC Appeal No. 0120072655 (July 31, 2008), requests for reconsideration denied, EEOC Request Nos. 0520080753 (September 12, 2008) and 0520100222 (March 11, 2010).
For the reasons stated below, the Commission reverses its previous finding that the requirements of the Older Workers' Benefit Protection Act (OWBPA) are not applicable to the settlement agreement at issue herein.1
ISSUES PRESENTED
Does the Agency's failure to address two attempts by Complainant to amend her complaint to include allegations of unlawful age discrimination and unlawful termination result in a violation of EEOC regulations and management directives? Does the Agency's failure to amend the complaint affect the validity of the settlement agreement?
BACKGROUND
Applicable Regulation and Management Directive
Commission regulations provide, in pertinent part, that:
A Complainant may amend a complaint any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint.
29 C.F.R. � 1614.106(d) (1999). Management Directive 110 provides that if a Complainant raises a new claim with an investigator, the investigator must instruct the Complainant to submit a letter to the Agency's EEO Director or Complaints Manager describing the new claim and stating that she wishes to amend her complaint. EEO MD-110, Chap. 5 Sect. III(B). Further, once the Agency is aware that a Complainant is raising a new like or related claim, the Agency is required to amend the complaint and acknowledge the amendment in writing. See EEO MD-110, Chap. 5 Sect. III(B)(2); see also 29 C.F.R. � 1614.106(e). The Agency must also notify the EEO investigator to include the new allegations in the investigation. See EEO MD-110, Chap. 5 Sect. III(B)(2).
We note that in the 29 C.F.R. Part 1614 administrative process, a claim is defined as having two components: (1) a factual statement of the employment practice or policy being challenged; and (2) the basis of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5, Sect. III(A) (Nov. 9, 1999). Thus, when an individual seeks to add a new basis, she is seeking to add a new claim.
Background Facts
In the matter before us, Complainant had worked for the Agency for over two decades as a Security Specialist. She was 43 years old at the time she filed a formal EEO complaint alleging that the Agency:
1. Discriminated against her on the bases of sex and disability when management ordered her to report to the Agency's Fort Meade facility in Maryland rather than continue to assign her duties at a work site in Northern Virginia near her home;
2. Failed to provide Complainant with a reasonable accommodation when it ordered her to report to Fort Meade;
3. Discriminated against her on the basis of sex when a male was selected to perform the same or similar functions at the Northern Virginia work site; and
4. Engaged in retaliatory harassment following Complainant's contact with an EEO counselor in January 2001.
Complainant did not raise age as a basis in her original EEO complaint. However, the record reflects that Complainant twice attempted to raise age as a basis to her existing claims and a subsequent termination claim after she filed the complaint, but before she requested a hearing. In an October 30, 2001 affidavit submitted during the Agency's investigation of her complaint, Complainant stated that she was "[a]lso ... including the Age Discrimination in Employment Act (ADEA)" and she referred to the ADEA three times in the document. On November 1, 2001, Complainant retired from the Agency. In a November 19, 2001 document, entitled "Agreement to Extend Investigation Period between the National Security Agency and Mary Ann Sheehy," Complainant labeled a section of the document "Amendment to October 30, 2001 EEO Affidavit" and stated that the responsible manager's "motive for termination of my employment from NSA was discrimination against me because of my disability, my sex, my age and intentional malicious retaliation for exercising my EEO rights and filing EEO complaints against [the manager]."
On appeal the Agency does not deny that it took no steps to amend the complaint. The Agency concluded its investigation of the formal complaint without addressing the ADEA and termination claims, and Complainant subsequently requested a hearing. In December 2004, while the complaint was pending before an EEOC Administrative Judge (AJ) in the Baltimore Field Office, the parties agreed to settle the matter.
The settlement agreement provided, in pertinent part, that Complainant would:
1. Be retroactively promoted to a GG-13, Step 4 grade as of June 21, 1998, with effective step increases earned for satisfactory performance up to the date of her disability retirement;
2. Receive all back pay, including any interest normally associated with back pay awards, from June 21, 1998 up to the date of her disability retirement; and
3. Receive a lump sum payment of $5,000.00 in costs.
The settlement agreement referenced Complainant's Title VII and Rehabilitation Act claims, but did not mention any age claims or a termination claim.
In March 2007, Complainant alleged breach of the agreement. The Agency issued a decision denying breach in April 2007, and Complainant appealed to this Commission arguing that the agreement should be voided because it was not drafted to comply with the OWBPA. In Sheehy v. National Security Agency, EEOC Appeal No. 0120072655 (July 31, 2008), we found that Complainant did not raise age as a basis of discrimination. We also found that the Agency breached the settlement agreement and ordered the Agency to comply with the terms of the agreement.2
ANALYSIS AND FINDINGS
Amendment of the Complaint
As an initial matter, we note that we erred in our previous decisions when we found that Complainant's underlying complaint did not include a claim of age discrimination. Our previous decisions did not address the requirements in our regulations and management directives that an Agency must amend a complaint to include a like or related claim that is raised while the complaint is pending. We erred when we found that Complainant only "tangentially" made reference to a claim of age discrimination. We find that Complainant, who clearly stated in two separate documents to the investigator her desire to allege discrimination under the ADEA for all of her claims and her desire to amend her affidavit to include a claim of discriminatory termination, sufficiently raised like or related claims of discrimination governed by EEOC regulation 29 C.F.R. � 1614.106(d) and Management Directive MD-110.
Having found that Complainant raised like and related claims during the investigation, we also find that the Agency failed to amend Complainant's complaint in accordance with our regulations and management directive. The Agency does not dispute that the investigator never acknowledged the like or related claims raised by Complainant, nor did the investigator instruct Complainant to submit a letter to the Agency's EEO Director or Complaints Manager. Additionally, we find that the Agency had actual knowledge that Complainant raised like or related claims when it reviewed the documents in the ROI. The Agency failed to amend the amendment in writing and failed to notify the investigator to include the like or related claims in the investigation. We find that the Agency violated our regulations and management directive when it failed to amend Complainant's complaint to include the like or related claims and instruct the investigator to include the later raised claims into the investigation. See EEO MD-110, Chap. 5 Sect. III(B)(2).
As a result, we amend Complainant's underlying complaint to include a basis of age discrimination for all of her claims, as well as the claim of discriminatory termination. Complainant's claims should have been framed as the following:
1. Complainant alleged discrimination on the bases of sex, disability, and age when management ordered her to report to the Agency's Fort Meade facility in Maryland rather than continue to assign her duties at a work site in Northern Virginia near her home;
2. Complainant alleged discrimination on the bases of disability and age when it failed to provide her with a reasonable accommodation when it ordered her to report to Fort Meade;
3. Complainant alleged discrimination on the bases of sex and age when a male was selected to perform the same or similar functions at the Northern Virginia work site;
4. Complainant alleged harassment on the bases of age and retaliation following Complainant's contact with an EEO counselor in January 2001; and
5. Complainant alleged discrimination on the bases of disability, sex, age, and reprisal for prior protected EEO activity when her employment was terminated from the Agency effective November 1, 2001.
Effect of the Agency's Failure to Amend the Complaint on the Settlement Agreement
Since the underlying complaint contains allegations of age discrimination and a discriminatory termination claim, the Commission finds that the settlement agreement applies to the age claims and the discriminatory termination claim because the settlement agreement waives the entire complaint.
We will now analyze the impact Complainant's allegations of age discrimination have on the settlement agreement. The OWBPA provides the minimum requirements for a waiver of age discrimination claims under the ADEA. Under OWBPA, a waiver is not considered knowing and voluntary unless, at a minimum: (1) it is clearly written from the viewpoint of the Complainant; (2) it specifically refers to rights or claims under the ADEA; (3) the Complainant does not waive rights or claims arising in exchange for the waiver; (4) valuable consideration is given in exchange for the waiver; (5) the Complainant is advised, in writing, to consult with an attorney prior to executing the agreement, and (6) the Complainant is given a "reasonable" period of time in which to consider the agreement. 29 U.S.C. � 626(f)(2). See Swain v. Department of the Army, EEOC Request No. 05921079 (June 3, 1993). Here, the settlement agreement does not mention the ADEA. The agreement is silent as to Complainant's rights or claims under the ADEA. Additionally, the record does not support a finding that Complainant had been given a reasonable period of time in which to consider the settlement agreement. Therefore, we find that the settlement agreement did not comply with the OWBPA's waiver requirements for agreements settling age claims.
In order to remedy Complainant, the Commission voids the settlement agreement with respect to Complainant's ADEA claims only. See Oubre v. Entergy Operations Inc., 522 U.S. 422, 428 (1998) (failure to comply with the OWBPA's stringent waiver safeguards will void the settlement agreement only with regard to the ADEA claims). Because the evidence does not support a finding that Complainant's waiver of her Title VII and Rehabilitation Act claims was defective, the settlement agreement, including all payments made to or owing Complainant, remains in effect with regard to those non-age based claims. See Campo v. United States Postal Service, EEOC Petition No. 03A20012 (August 27, 2002).
Complainant is entitled to have her age based claims, including an age based termination claim,3 processed from the point where processing ceased in December 2004. Therefore, these claims are remanded for adjudication to the Hearings Unit of the Baltimore Field Office. Since the age claims and the termination claim have not been investigated, the Commission directs the AJ assigned to the case to ensure that the record is developed by ordering the Agency to conduct a supplementary investigation and/or providing for discovery.
If Complainant eventually prevails on her ADEA claims, the Agency may seek to reduce her award by the benefits she received under the settlement agreement. This Commission notes, as did the Supreme Court, that this "may be complex where a release is effective as to some claims but not as to ADEA claims." Oubre at 428. We remind the parties that compensatory damages and attorney's fees and costs are not available under the ADEA. See Falks v. Department of the Treasury, EEOC Request No. 05960250 (September 5, 1996).
CONCLUSION
For the reasons set forth above, our decision previously issued in Mary Ann Sheehy v. National Security Agency, EEOC Appeal No. 0120072655 (July 31, 2008), as clarified by EEOC Petition No. 0420090007 (November 27, 2009), and our decision in EEOC Enforcement No. 0420100012 (February 27, 2012), remains in effect with regard to the resolution of Complainant's Title VII, Equal Pay Act and Rehabilitation Act claims. However, we reverse the portion of our previous decisions with regard to Complainant's ADEA claims, and find that the agreement did not comply with the OWBPA. The Agency is directed to comply with the Order below.
ORDER
Within fifteen (15) days of receipt of this decision, the Agency shall notify the Hearings Unit of the Baltimore District Office to request the assignment of an Administrative Judge to preside over Complainant's age based claims, including an age based termination claim, consistent with this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
February 27, 2012
__________________
Date
1 The OWBPA amended the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. � 621 et seq. in 1990, and applies to federal employees pursuant to � 626(f)(2).
2 The Commission also issued a Decision on the Agency's Petition for Clarification in Mary Ann Sheehy v. National Security Agency, Petition No. 0420090007 (November 27, 2009), in which we examined the enforcement of the Order in 0120072655. On January 29, 2010, Complainant's counsel submitted a Petition for Enforcement. In Mary Ann Sheehy v. National Security Agency, EEOC Petition No. 0420100012 (February 27, 2012), the Commission found that the Agency complied with the Commission's Order in EEOC Appeal No. 0120072655, Request No. 0520080753, and Clarification No. 0420090007.
3 We note that since we are only voiding the agreement with respect to Complainant's ADEA claims, and because the settlement agreement waives all related claims under Title VII, the Rehabilitation Act, and the Equal Pay Act, we remand Complainant's termination claim for further processing on the basis of age only.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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